Citation Nr: 1700451
Decision Date: 01/09/17 Archive Date: 01/18/17
DOCKET NO. 13-33 393 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUES
1. Entitlement to service connection for a bilateral hip disability, claimed as secondary to service-connected chronic lumbosacral strain.
2. Entitlement to service connection for bilateral lower extremity radiculopathy/neuropathy, claimed as secondary to service-connected chronic lumbosacral strain.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jarrette A. Marley, Counsel
INTRODUCTION
The Veteran served on active duty in the United States Air Force from December 1966 to July 1967.
These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran was scheduled for a video conference hearing before the undersigned Veterans Law Judge in November 2016. While such hearing was held, the Veteran was too ill to attend, but his representative presented argument in support of the Veteran's claim.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2015).
The issue of entitlement to service connection for a bilateral hip disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
Bilateral lower extremity radiculopathy and sciatic neuropathy is secondary to service-connected chronic lumbosacral strain.
CONCLUSION OF LAW
Bilateral lower extremity radiculopathy and sciatic neuropathy is secondary to service-connected chronic lumbosacral strain. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).
In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).
Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995).
The Board finds that the Veteran is entitled to service connection for radiculopathy and sciatic nerve neuropathy of the right and left lower extremities. In this respect, the Board notes that the Veteran is service-connected for chronic lumbosacral strain. The evidence includes a June 2013 VA peripheral nerves examination that diagnosed bilateral lower extremity radiculopathy and incomplete paralysis of the bilateral sciatic nerve. It was opined that the Veteran has moderately severe lumbar radiculopathy of both lower extremities for which he should be service connected. In addition, September 2008 and July 2013 VA EMG/nerve conduction studies were compatible with generalized peripheral polyneuropathy. In an addendum September 2013 opinion, the June 2013 VA peripheral nerves examiner stated there was no doubt the Veteran's service-connected lumbar spine disability has compromised his lumbar nerves, resulting in bilateral lumbar radiculopathy, and that the Veteran should be service connected for that. While a separate September 2013 VA opinion indicated there was no objective evidence to suggest the presence of any radiculopathy, and indicated the Veteran's peripheral neuropathy was secondary to his nonservice-connected diabetes mellitus, the Board notes that VA treatment records indicate the Veteran was diagnosed with diabetes mellitus in May 2009, well after objective EMG/nerve conduction studies testing revealed bilateral lower extremity neuropathy in September 2008.
Based on the evidence of record, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's bilateral lower extremity symptoms are attributable to radiculopathy and sciatic nerve neuropathy, and are secondary to his service-connected chronic lumbosacral strain. 38 C.F.R. § 3.310. Thus, the Board finds that service connection is warranted for his bilateral lower extremity radiculopathy and sciatic nerve neuropathy. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
ORDER
Service connection for right lower extremity radiculopathy and sciatic nerve neuropathy is granted.
Service connection for left lower extremity radiculopathy and sciatic nerve neuropathy is granted.
REMAND
The Veteran also contends that he has a bilateral hip disability, secondary to his service-connected chronic lumbosacral strain. The post-service evidence of record reflects diagnoses of bilateral hip arthritis. See April 2015 VA hip x-rays (finding early arthritic changes present in both hips). In light of the evidence presented, the Board finds that the "low threshold" requirement under McLendon v. Nicholson, 20 Vet. App. 79 (2006) is met, and the Veteran should be afforded a VA examination to determine the nature and etiology of his bilateral hip disability.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Notify the Veteran he may submit statements from himself and others who have first-hand knowledge of the nature and extent of his post-service bilateral hip symptoms, as well as any relationship between the disability and his service-connected chronic lumbosacral strain.
2. After the above development, schedule the Veteran for an examination to determine the nature and etiology of his bilateral hip disability. The Veteran's claims file should be provided to and reviewed by the examiner. All indicated studies should be performed.
Based on review of the record, and interview of the Veteran, the examiner should provide an opinion that responds to the following:
(a) Please identify (by medical diagnosis) the Veteran's disability regarding his right and left hip.
(b) Provide an opinion whether it is at least as likely as not the Veteran's bilateral hip disability was caused by his service-connected chronic lumbosacral strain.
(c) Provide an opinion as to whether it is at least as likely as not the Veteran's bilateral hip disability was aggravated by his service-connected chronic lumbosacral strain.
Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms.
The examiner should give a reasoned explanation for all opinions providing. If the examiner is unable to provide a medical opinion, then he or she should provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.
3. Then readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015).
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STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs